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Monday, January 31, 2011

A Small-Town, Social-Media Parable

My co-author Daniel Friedel and I just finished a book chapter for a book called Social Media: Usage and Impact (Hana Noor Al-Deen & John Allen Hendricks, eds., Lexington Books, 2011). In the course of writing the chapter, I came across Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. App. 2009), a case I had somehow missed when it came out. The Moreno case is a cautionary tale about the dangers of engaging in undue self-revelation online, but that is not the only reason I find it fascinating. I find it fascinating because I grew up in a small, remote town, and I am acutely aware of the social dynamics that underlie the case.

Here are the facts. While Cynthia Moreno was a college student at Berkeley, she visited her hometown of Coalinga, California. Moreno subsequently published on her MySpace page a very negative “Ode to Coalinga,” in which she stated, among other things, that “the older I get, the more I reliaze that I despise Coalinga.” (1128) The principal of Coalinga High School obtained the Ode and forwarded it to a local reporter. After publication of the Ode in the local newspaper, Cynthia Moreno’s family received death threats, and a shot was fired at their home. They were forced to move away from Coalinga, abandoning a 20-year-old business. (1129). They sued the principal and the local newspaper for invasion of privacy and intentional infliction of emotional distress. The trial court dismissed the case against the newspaper under a California's antil-slapp statute. The Moreno family did not appeal the ruling regarding the newspaper, but they did appeal the trial court’s dismissal of their claims against the principal for invasion of privacy and for intentional infliction of emotional distress. (1129).

With regard to the privacy claim, the California appellate court held that the revelations concerning the Ode simply were not "private" once Cynthia Moreno posted them on MySpace, “a hugely popular internet site.” (1130). The Court found, in essence, that Cynthia had waived any reasonable expectation of privacy through her "affirmative act." (1130). It was immaterial to the court that few viewers actually accessed Moreno’s MySpace page. By posting it, she opened her thoughts to “the public at large,” and “[h]er potential audience was vast” regardless of the size of the actual one. As Cynthia learned to her sorrow, there is no privacy invasion when information shared with a seemingly “friendly” audience is repeated to a hostile one. (1130). [Query, however, whether this could lead to a false light claim in the right circumstances.] Although the court dismissed Cynthia's privacy claim, the court held open the possibility that a claim for intentional infliction of emotional distress could succeed. (1128).

The Moreno case sends a mixed message about legitimate use of information shared in "public" social media. On one hand, the information is not private. On the other, republication can still lead to liability if done for the purpose of inflicting emotional distress on another in a manner that jurors might subsequently deem “outrageous.” At first blush and maybe at second, too, this latter holding regarding intentional infliction (the court left its reasoning unpublished) seems inadequately protective of speech. After all, the principal was merely republishing lawfully obtained truthful and non-private information, arguably about a matter of local significance. The principal had no "special relationship" (protective, custodial, etc.) with Cynthia Moreno that might have imposed on him a duty to give special regard to her interests or emotional well-being. It seems from the facts, however,that Cynthia's younger (minor) sister might have been attending the high school of which the defendant was principal, which perhaps could make his actions more "outrageous." Moreover, how much solicitude should be given to a defendant such as the principal if his intent in publishing the statement was to ensure the ostracization of Cynthia and her family, or even if he acted with reckless disregard that those consequence would result? Of course, the statement need not have been published in a newspaper in order to produce a similar result. In a town of fewer than 20,000 residents, the gossip mill very well might have ensured that the information got to those most likely to be interested in it. Moreover, if the principal could foresee harm to Cynthia through the gossip mill, arguably so could Cynthia (even if the scope and exact manner in which those harms would occur were unforeseeable). After all, she did grow up there and should have known, even at 18 years old or especially at 18 years old, how vicious the repercussions might be if her Ode got out. I feel great empathy for Cynthia, but I do worry about the free speech implications of giving a tort remedy based on the repetition of lawfully obtained, truthful, non-private information, even when done with bad motives.